Mirror of Justice

Plaintiffs Win Free Exercise Challenge to Washington Plan B Pharmacy Regulations

In a challenge to Washington State's requirement that pharmacists dispense Plan B even where a pharmacist has a religious objection to doing so, the federal district judge ruled today that the pharmacy regulations were neither neutral nor generally applicable and could not survive strict scrutiny review. Judge Ronald Leighton's opinion is here, and the Becket Fund's press release is here

Senator Kelly Ayotte on the HHS Mandate

Senator Kelly Ayotte of New Hampshire--a graduate of Villanova Law--delivered a floor speech and spoke at a press gathering yesterday about the HHS mandate. Stories and video here and here.

Failure of General Applicability in Iowa Road Protection Ordinance

Further to Marc's recent post on the taming of Employment Division v. Smith, the Iowa Supreme Court yesterday issued an interesting and thorough opinion in a case involving a challenge by a member of the Old Order Mennonite Church against a county ordinance prohibiting the use of steel cleats on tractors. The opinion was written for a unanimous court by Justice Edward Mansfield, a very able lawyer who was recently appointed to the Iowa Supreme Court by Governor Terry Branstad. Here is a bit from Justice Mansfield's opinion:

Upon our review, we find the County's ordinance lacks sufficient general applicability to bring this case under Smith. Section 321.442(1) is not a problem; it exempts farm machinery tires with protuberances, but only so long as they “will not injure the highway.” Such an exception is consistent with the stated purpose of protecting the County's roads. One could argue that sections 321.442(2) and (3) do not defeat the general applicability of the ordinance either. Although they allow the use of tire chains, ice grips, or tire studs, the exemptions are limited in scope (“reasonable proportions,” “not more than one-sixteenth inch beyond the tread of the traction surface of the tire”), and except for buses and emergency vehicles, in timing (“when required for safety because of snow, ice, or other conditions,” “from November 1 of each year to April 1 of the following year”). One could construct an argument, therefore, that the ordinance really serves a mixed purpose: It protects the roads from damage except when necessary for safety reasons.

Yet we believe the effort ultimately fails. School buses are allowed to use ice grips and tire studs year round. It is difficult to see how this secular exemption serves either of the foregoing dual purposes. Moreover, the County declined in September 2009 to regulate various other sources of road damage besides steel wheels. Rather, it chose to prohibit only a particular source of harm to the roads that had a religious origin. For example, although state law contains various limits on the overall weight of vehicles and also limits weight per inch of tire width, see Iowa Code §§ 321.440(2), .463, Mitchell County elected not to cover these matters in its ordinance.

The underinclusion of the ordinance undermines its general applicability. See Blackhawk, 381 F.3d at 209 (noting that a law “fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated”(emphasis added)). We are convinced the underinclusion is “substantial, not inconsequential.” Lukumi, 508 U.S. at 543, 113 S.Ct. at 2232, 124 L.Ed.2d at 497.

Charles Dickens and the Catholic Legal Imagination

This week marks the bicentenary of Charles Dickens’s birth. When my law students ask for a summer reading recommendation, I tell them to read Bleak House, one of the great novels about law and arguably Dickens’s masterpiece. Of course, Bleak House is hardly a Grisham-esque celebration of lawyers, and perhaps for that reason it’s an especially worthwhile novel to read amid times of economic turmoil and cynicism about legal education and the legal profession. As he did to Utilitarianism in Hard Times, Dickens attacks the corruption, pettiness, and self-importance of law in Bleak House, vividly depicting the shrunken soul of Mr. Tulkinghorn and the buffoonish legalese of Mr. Guppy. Consider this passage describing Tulkinghorn’s chambers, replete with images of law's obscurantism:

The day is closing in and the gas is lighted, but is not yet fully effective, for it is not quite dark. Mr. Snagsby standing at his shop-door looking up at the clouds sees a crow who is out late skim westward over the slice of sky belonging to Cook’s Court. The crow flies straight across Chancery Lane and Lincoln’s Inn Garden into Lincoln’s Inn Fields.

Here, in a large house, formerly a house of state, lives Mr. Tulkinghorn. It is let off in sets of chambers now, and in those shrunken fragments of its greatness, lawyers lie like maggots in nuts. But its roomy staircases, passages, and antechambers still remain; and even its painted ceilings, where Allegory, in Roman helmet and celestial linen, sprawls among balustrades and pillars, flowers, clouds, and big-legged boys, and makes the head ache — as would seem to be Allegory’s object always, more or less. Here, among his many boxes labelled with transcendent names, lives Mr. Tulkinghorn, when not speechlessly at home in country-houses where the great ones of the earth are bored to death. Here he is today, quiet at his table. An oyster of the old school whom nobody can open.

But the most lasting characters in Dickens are those, such as Esther Summerson and John Jarndyce in Bleak House, whose kindness and generosity endure amid the dehumanizing world around them, another lesson I would hope a law student or lawyer would take from reading Bleak House to set off any despair about law's purposes. Catholic critics from G.K. Chesterton to Peter Ackroyd have rightly seen in Dickens a reflection of merry English Catholicism, summarized in this bit from Chesterton’s Charles Dickens (1906):

If we are to look for lessons, here at least is the last and deepest lesson of Dickens. It is in our own daily life that we are to look for the portents and the prodigies. This is the truth, not merely of the fixed figures of our life; the wife, the husband, the fool that fills the sky. It is true of the whole stream and substance of our daily experience; every instant we reject a great fool merely because he is foolish. Every day we neglect Tootses and Swivellers, Guppys and Joblings, Simmerys and Flashers. Every day we lose the last sight of Jobling and Chuckster, the Analytical Chemist, or the Marchioness. Every day we are missing a monster whom we might easily love, and an imbecile whom we should certainly admire.

This is the real gospel of Dickens; the inexhaustible opportunities offered by the liberty and the variety of man. Compared with this life, all public life, all fame, all wisdom, is by its nature cramped and cold and small. For on that defined and lighted public stage men are of necessity forced to profess one set of accomplishments, to rise to one rigid standard. It is the utterly unknown people who can grow in all directions like an exuberant tree. It is in our interior lives that we find that people are too much themselves. It is in our private life that we find them swelling into the enormous contours, and taking on the colours of caricature. Many of us live publicly with featureless public puppets, images of the small public abstractions. It is when we pass our own private gate, and open our own secret door, that we step into the land of the giants.

Charles Dickens's work is one of the high achievements in our English language of the human spirit. For that reason, everyone—even lawyers, whom he subjected to such searching criticism in Bleak House—has reason to celebrate tomorrow the comradeship and joy that Chesterton offered as his final word on Dickens:

The hour of absinthe is over. We shall not be much further troubled with the little artists who found Dickens too sane for their sorrows and too clean for their delights. But we have a long way to travel before we get back to what Dickens meant: and the passage is along a rambling English road, a twisting road such as Mr. Pickwick travelled. But this at least is part of what he meant; that comradeship and serious joy are not interludes in our travel; but that rather our travels are interludes in comradeship and joy, which through God shall endure for ever. The inn does not point to the road; the road points to the inn. And all roads point at last to an ultimate inn, where we shall meet Dickens and all his characters: and when we drink again it shall be from the great flagons in the tavern at the end of the world.

Charitable Balance

Robert Hockett is rather more charitable in his interpretation of the Boston Globe story about the supposed similarity between Governor Romney's position on Plan B for sexual assault victims in emergency rooms and the HHS mandate. On a different front, Robert is also charitable in predicting that the Obama Administration will reverse itself on the mandate. I hope he's right on both scores. I also take his point that critics of Governor Romney on conscience protection--who, as I suggest below, are conflating important distinctions in law and bioethics--come from some unexpected quarters, but such are the confusing political times in which we live.

Mitt Romney, Conscience, and the Boston Globe's Mistakes

The Boston Globe is apparently so intent on impugning Mitt Romney and defending the Obama Administration's attack on religious freedom in the HHS mandate that it isn't letting facts get in the way. Today's Globe has a story about Governor Romney's support in 2005 of a requirement that all hospitals, including Catholic hospitals, provide sexual assault victims in an emergency room with Plan B contraception, which the Globe says is "similar" to the Obama Administration's current policy under the HHS mandate. The only problem with that charge of hypocrisy against Governor Romney is that the two policies are about entirely different things. When a number of states enacted requirements that all hospitals provide Plan B to sexual assault victims in the ER, the Catholic response was somewhat divided (summary article here), with the bishops of New York and Connecticut issuing statements agreeing to permit Catholic hospitals to follow the requirement. The USCCB Ethical and Religious Directives clearly permit administration of drugs to sexual assault victims to prevent pregnancy ("A female who has been raped should be able to defend herself against a potential conception from the sexual assault. If, after appropriate testing, there is no evidence that conception has occurred," no. 36), though there has been considerable debate about whether hospitals should administer both an ovulation and a pregnancy test and whether Plan B acts as an abortifacient. See Daniel P. Sulmasy, “Emergency Contraception for Women Who Have Been Raped: Must Catholics Test for Ovulation, or Is Testing for Pregnancy Morally Sufficient?” Kennedy Institute of Ethics Journal 16, no. 4 (December 2006): 305-31, and Nicanor P. G. Austriaco, OP, “Is Plan B an Abortifacient? A Critical Look at the Scientific Evidence,” National Catholic Bioethics Quarterly 7.4 (Winter 2007): 703–707. What is clear is that the HHS mandate isn't about emergency care of sexual assault victims in Catholic hospitals but is instead a requirement that a range of Catholic institutions cover contraceptives (including Ella, a drug with undisputed abortifacient properties) and sterilization procedures in their health insurance plans. The underlying issues in disputes about conscience protection are important, and obfuscating the facts in different cases doesn't help.

The Importance of Institutional Pluralism

As Rick notes, Yuval Levin's piece today and Ross Douthat’s column yesterday are valuable reflections on the importance of institutional pluralism in a liberal society, a point underappreciated by many, including Douthat's colleagues on the editorial board. Yuval and Douthat show that the disagreement over the HHS mandate is a debate over whether and in what circumstances the coercive power of the state should be employed against the institutions of civil society. As Yuval observes, Catholicism (and especially American Catholicism) is a uniquely institutional form of religion, with social service agencies, hospitals, and schools at every level, and Catholic institutions are, not surprisingly, on the front lines of these battles. It strikes me that one’s view of the HHS mandate will often vary depending on whether one embraces “the logic of congruence,” in Nancy Rosenblum’s phrase, or a robust commitment to the freedom of civil society (churches, civic organizations, families, etc.), including toleration for views one sharply disagrees with. If the former, then you just have to bide your time until your side has a grasp on the levers of state power, and so, as Douthat points out, the increased authority of the state in these matters will eventually gore everyone’s ox--liberal or conservative, religious or not--depending on the politics of the administration. As Rosenblum and Robert Post put it in the introduction to Civil Society and Government (Princeton, 2002):

Advocates of congruence fear that the multiplication of intermediate institutions does not mediate but balkanizes public life. They are apprehensive that plural associations and groups amplify self-interest, encourage arrant interest-group politics, exaggerate cultural egocentrism, and defy government. What is needed, in their view, is a strong assertion of public values and policies designed to loosen the hold of particular affiliations, so that members will be empowered to look beyond their groups and to identify themselves as members of the larger political community. The “logic of congruence” envisions civil society as reflecting common values and practices “all the way down.”

All of this was diagnosed by Tocqueville, who saw that individualism and statism are reinforcing over time, crowding out religious and other forms of associational life for the allegiance of citizens:

As in periods of equality no man is compelled to lend his assistance to his fellow men, and none has any right to expect much support from them, everyone is at once independent and powerless. These two conditions, which must never be either separately considered or confounded together, inspire the citizen of a democratic country with very contrary propensities. His independence fills him with self-reliance and pride among his equals; his debility makes him feel from time to time the want of some outward assistance, which he cannot expect from any of them, because they are all impotent and unsympathizing. In this predicament he naturally turns his eyes to that imposing power which alone rises above the level of universal depression. Of that power his wants and especially his desires continually remind him, until he ultimately views it as the sole and necessary support of his own weakness.
 
It frequently happens that the members of the community promote the influence of the central power without intending to. Democratic eras are periods of experiment, innovation, and adventure. There is always a multitude of men engaged in difficult or novel undertakings, which they follow by themselves without shackling themselves to their fellows. Such persons will admit, as a general principle, that the public authority ought not to interfere in private concerns; but, by an exception to that rule, each of them craves its assistance in the particular concern on which he is engaged and seeks to draw upon the influence of the government for his own benefit, although he would restrict it on all other occasions. If a large number of men applies this particular exception to a great variety of different purposes, the sphere of the central power extends itself imperceptibly in all directions, although everyone wishes it to be circumscribed.
 
Thus a democratic government increases its power simply by the fact of its permanence. Time is on its side, every incident befriends it, the passions of individuals unconsciously promote it; and it may be asserted that the older a democratic community is, the more centralized will its government become.
 
Democracy in America, Vol. II, Pt. 4, Ch. 3

St. Thomas and the Sanctity of Mind

As Rick notes, today is the Feast of St. Thomas Aquinas. Here's a bit from a homily preached at Blackfriars (Oxford) on this feast by my late friend Herbert McCabe, OP:

St. Thomas’s life was spent in asking questions (nearly all his major works are divided up explicitly into questions), and this meant seeking to answer them. A man is a saint, though, not by what he does and achieves, but by his acceptance of failure. A saint is one who conforms to Christ, and what Jesus is about was not shown in his successes, his cures and miracles and brilliant parables and preaching, but in his failure, his defeat on the cross when he died deserted by his followers with all his life’s work in ruins.

Now whatever his many other virtues, the central sanctity of St. Thomas was a sanctity of mind, and it is shown not in the many questions he marvelously, excitingly answered, but in the one where he failed, the question he did not and could not answer and refused to pretend to answer. As Jesus saw that to refuse the defeat of the cross would be to betray his whole mission, all that he was sent for, so Thomas knew that to refuse to accept defeat about this one question would be to betray all that he had to do, his mission. And this question was the very one he started with, the one he asked as a child: What is God?

....

This, then, is the heritage Thomas has left to his [Dominican] brethren and to the Church: first, that it is our job to ask questions, to immerse ourselves so far as we can in all the human possibilities of both truth and error; then we must be passionately concerned to get the answers right, our theology must be as true as it can be; and finally we must realize that theology is not God, as faith is not God, as hope is not God: God is love. We must recognize that the greatest and most perceptive theology is straw before the unfathomable mystery of God’s love for us which will finally gather us completely by the Holy Spirit into Christ, the Word God speaks of himself to himself. Then, only then, is our first question answered.

Skeel on Religious Freedom in the Wall Street Journal

My friend David Skeel (Penn Law) has a good op-ed in today's Wall Street Journal about recent religious freedom matters. I thought this point about the politics of religious freedom was especially well-taken:

The Obama administration's reluctance to accommodate is also at odds with many years of progressive efforts to enhance protection for those whose religious views are out of the mainstream. Liberals were strong supporters of the Supreme Court's decision to exempt Jehovah's Witnesses from saluting the flag in 1943, and they were vociferous critics of a 1990 Supreme Court decision that upheld the denial of unemployment benefits for Native Americans who smoked peyote, an illegal drug, in religious ceremonies.

Greve on the HHS Mandate

In contrast to the bizarre argument underway in some forums that the HHS mandate is the Church's own fault or that this is a great victory for individual conscience against oppressive religious institutions, I'd like to think that MOJ's distinctive role in our little corner of the blogosphere is to bring us back to the legal issues in play, since we are, after all, talking about administrative implementation of a federal statute. To that end, Michael Greve has a post at the Liberty Law Blog that spells out the unprincipled and ad hoc means by which the Administration has gone about this whole process:

The Affordable Care Act (ACA) requires certain employer health plans to cover preventive care for women without co-pays or deductibles, “as provided for in comprehensive [but then non-existent] guidelines supported by the Health Resources and Services Administration [HSRA].” ACA §1273 (a)(4). In July 2010, HHS proposed an IFR to the effect that “preventive” care should encompass pregnancy prevention, and it instructed the private Institute of Medicine (IOM) to provide guidance. The IOM invited and heard presentations from such groups as the National Womens Law Center, Planned Parenthood, and the Guttmacher Institute (but not from any religious group). Predictably, the IOM urged inclusion of the full panoply of FDA-approved devices and procedures, including sterilization and so-called “morning-after” and “week-after” pills. (These drugs “prevent” pregnancies after they have begun. Many Christian denominations in addition to the Catholic Church view them as abortifacients.) Within less than two weeks, without further notice or public comment, HHS adopted this position in an IFR and HSRA issued guidelines. 76 Fed.Reg. 46621 (published Aug. 3, 2011), 45 C.F.R. § 147.130; http://www.hrsa.gov/womensguidelines.

Follow the progression: first comes a statutory text of sufficient ambiguity to keep the Catholic Health Association, representing Catholic hospitals, on board in support of the ACA. (Now that it’s been had, one hopes the association has learned its lesson.) Then comes an administrative creep forward and a de facto delegation to a private organization of known disposition, whose perceived authority and expertise provide cover for the bureaucracy. Then comes the wholesale, underhanded adoption of the interim rule.

This “process” has been playing out while Mrs. Sebelius’s office has issued hundreds of waivers for employer health plans that fail to comply with the ACA’s and HHS’s exalted standards, such as “mini-med” plans used by McDonald’s. Without those waivers, the ranks of the uninsured would swell. Hiding the ACA’s inanity is sufficient reason to suspend the legal requirements; First Amendment objections apparently aren’t. And the administration has proceeded by IFR, without the full notice-and-comment rulemaking apparatus of the Administrative Procedures Act. The APA requires “good cause” for IFRs, 5 U.S.C. 553 (b)(B)—most commonly, situations that do not admit of delay (think homeland security). A rule that can be suspended for a year can’t have been that urgent to begin with.